Wednesday, 20 August 2008

In the recent Federal Magistrates Court case of Keogh and Meys, the wife sought an order for sole use and occupation of the former matrimonial home. The parties had lived separately under the one roof for the previous 14 months, the wife saying since December 2007 that it was intolerable for her to live in the home with the husband, given that she said that he had engaged in acts of domestic violence.

Dealing with the matter on an interim basis, the court had the ability to see each of the parties give evidence, and preferred the evidence of the husband.

The wife asserted, amongst other things, that the husband had been charged with assaulting her "on seven occasions", which was untrue- he being charged with assaulting police once and once with assaulting another family member.

The wife sought to rely upon photos of broken crockery and sheared shrubs, but the husband had explanations of both.

The wife also obtained reports from two treating doctors, one of which had little weight,and the other of which depended on the wife's credibility.

The wife had late in the day complained to police:

There is evidence to show that the wife has delayed making a compliant to police of alleged misconduct, on the husband’s part, for many months. This undercuts the seriousness of her complaints against the husband. Rather, it seems to me, she raised the issue of this misconduct with police, at a much later stage, in the hope of securing some tactical advantage over the husband in these proceedings.

His Honour Brown FM held:

The parties have been living, separated under the one roof, at the Property U premises, since May of 2007. A period of now approximately 14 months. I accept that, although this is not a perfect situation, the parties are not living cheek by jowl, as the property concerned is large. I reject the suggestion that the husband has waged a vendetta of psychological abuse against the wife, in the period following separation.

It was in December 2007, in response to the husband’s application for a settlement of property, that the wife raised the issue of sole occupation. This suggests to me that conditions at the property are not as intolerable as she would have me believe. As such, I am satisfied that the parties can largely lead separate lives at the property in Property U....

In all these circumstances, in my view, it is a significant matter for the court to evict a person from a piece of property, which he would otherwise be entitled to occupy. Although the husband has a regular source of income, he cannot be regarded as a wealthy person and I am satisfied that he has no obvious sources of alternative accommodation for himself. For him to be compelled to leave the property would be a source of considerable hardship for him.

Having heard the evidence of each of the parties, regarding the situation which prevails at the Property U property, I am satisfied that the husband is not guilty of any level of misconduct, which should justify his expulsion from the property. Indeed, it is my view that the wife’s allegations against him are vague and uncertain in nature.

I accept that it is inconvenient, for both parties, for them to live in the same premises. However, it seems to me that it is practicable, given the size of the house concerned and the length of the time which both have occupied it, for them to continue to remain in the home together. Having considered all the factors in this case, I have come to the conclusion that it would not be proper for me to make the sole occupancy order, which the wife seeks.

Comment: If bringing a sole application, come to court with cogent, compelling, detailed and preferably corroborated evidence as to why the situation is intolerable, make complaint to police as soon as possible and apply to the court as soon as possible.

In summary, as falsely attributed to US Civil War General Nathan Bedford Forrest:

No comments:

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.